Friday, July 31, 2015

NB - The following message received from a human rights activist in Bhubaneshwar speaks for itself. Beneath it is a press release by the Campaign Against Fabricated Cases (CAFC), Odisha; and a brief report on an incident in Kotagarh on July 26, 2015. The activists have disclosed their contact details. All democratic-minded citizens should try and obtain more information about it and agitate for justice to the victims - DS

"As you know, killing a Maoist is a very rewarding incentive
for a police officer. Arresting a Maoist or killing her/him can bring monetary
benefits, promotions, state awards to the police officially. Unofficially, the
police can have unchallenged control and supremacy over the people - fetch
bribes, luxuries and everything. That's why the police officers (backed by the
Government) are in a mission to increase 'Maoist infested' districts and it has
become a common practice to name a young adivasi/ dalit as a dreaded Maoist and
then kill her/him by faking an encounter.

To draw your attention to one very recent incident in
Kandhamal, where the CRP force killed two a middle aged persons
(couple)who had gone to hillside to get better mobile phone network for
making a call to their son who works as a labour in Kerala. I am attaching two
reports by two Human rights activists for your information. The Police and Government are trying to cover up the
incident and allow the killers to get away - may be they'll get state
incentives for their this 'heroic' and 'nationalistic act'.

In this context, may I request your feedbacks and comments
on how to deal with such issues in a situation when human rights activists are
also being targeted by the Modi government? ..

Waiting for your response,

Regards,

Dhirendra Panda

Convener, Civil Society Forum on Human Rights (CSFHR) and

Secretary, Centre for the Sustainable use of Natural and
Social Resources (CSNR)

Campaign Against Fabricated Cases(CAFC), Odisha strongly
condemning the 'Fake Encounter' by CRPF
& SOG forces at Panglpadar village of Madaguda G.P of Kotagada Block area
and brutally killing of ordinary citizen(Dubeswar Nayak - 45 yrs & Bhubudi
Nayak - 42 yrs - both are husband & wife), who were engaged in telephonic
conversion with their sons at a place of hills where mobile network is
accessible.

The Constitution of India have not authorized any person to
kill anybody. But always security forces are violating the constitutional norms
and killing ordinary citizens in the name of combing operation.

The CAFC, Odisha demands CBI inquiry the matter, Rupees 20
lakhs compensation to the deceased persons and exemplary punishment to the
killer security personnel in this press release. A fact finding team will visit
the place soon and will exposed the police brutality on common people in
Kandhamal, the release said.

NARENDRA MOHANTY,

STATE CONVENER, CAFC, ODISHA.

*****************

Brief report on the incident

After the church
service yesterday Dhubaleswar and his wife along with other three from his
village Pangalipdar went to the top of . nearby hill to make phone calls
to their children working in Kerala by 4 pm.

Other three, Sukant
Challanset and his wife, and Jibed Challanset returned to their home after they
finished talking to their children. During that time they met two Central
Reserve Police Force( CRPF) who pointed their guns towards them and asked their
whereabouts. They told that they belonged to the nearby village and had gone up
to make calls to their sons working in Kerala. They also informed about
Dhubaleswar and his wife making phone calls still there. Then they let them go.

After half an hour
these three heard some gun firing sound came from the top of the hill. About 20
villagers were ready to visit that place but they were afraid of the CRPF. By
that time it was dark. Next morning as they
did not see the couple at their home they went to that place in search of them.
Surprisingly they did not see them on that spot where they stood for phone
calls. but saw blood here and there, man's vest, and two pair of slippers.

They
searched the whole mountain but did not find them or their dead bodies.Then they came to the
police station at Kotogarh and informed about the incident to make an inquiry.
In their FIR they have mentioned that CRPF must have killed them. The police went to the
spot and verified. They also could not find them or their dead bodies. This news spread like
wild fire because Dhubaleswar was very good and popular christian leader.

People came in large
number and shouted against the police atrocities on the innocent people like
them. We went to Kotogarh
which is about 100 km from Raikia and saw hundreds of people demonstrating
on the road side and they have blocked the road demanding the dead bodies to be
given to them.Twenty four hour gone but they could not see the dead body
of their beloved leader.

My hear broke when I
saw their two daughters who were crying intensely in the crowd. They came, hold me and asked me " why they killed our both parents, at least
they could have left either one for us"! Tomorrow we will go
again to give company and comfort to them. We do not know what is waiting for
us tomorrow. I will let you know.

This is the place from
where 7 innocent christian leaders have been jailed since 2008 October.

NB: It seems that vested interests have a strangle-hold over the Indian government, leading it to act against the very constitution that it is sworn to uphold and against the very people whom t is sworn to protect - DS

Whether consent from tribal village councils is essential
before using forests could hinge on a case being heard by the National Green Tribunal on the Thoubal multipurpose
dam project, which has been under construction since 1989 in Manipur. The tribal affairs ministry has told the court it does not
have the power or a mechanism to verify claims of state governments that
consent of tribals had been sought under the Forest Rights Act, 2006, before
handing over forests to industry.

An affidavit stating its position was submitted by the tribal affairs ministry
to the tribunal in July 2014. This has become the main point of contention in
the court hearings. The statement of the tribal affairs ministry is contrary to its position stated
repeatedly over the past year to the prime minister's office and the
environment & forests ministry.

The petitioners in the case, claiming the Thoubal project had come up without
requisite clearances, pleaded through lawyer Ritwick Dutta the statement of the
tribal affairs ministry be reviewed, as it would set a precedent over use of
tribal forests. The court is set to hear more on this at its next hearing on
August 4.

The tribal affairs ministry is the nodal ministry for implementation of the
Forest Rights Act. The environment & forests ministry issues clearances to
industries to use forest land under the Forest Conservation Act, 1980. As the Forest Rights Act supersedes all previous laws, the
clearance process was brought in conformity by the environment ministry in
2009.

The environment ministry ordered that the rights of all must be settled on a
piece of land before it could be diverted, and the consent of village councils,
the statutory authority under the Forest Rights Act, must be sought. Gram Sabha
resolutions giving consent and the district authorities' confirmation that all
rights had been settled were to be sent to the environment ministry to be
checked before any project was allowed on forest land.

This process of seeking village councils' consent became part of the Vedanta
mining judgment of the Supreme Court during the United Progressive Alliance
regime. After the National Democratic Alliance assumed office at the Centre, the
environment ministry asked the Prime Minister's Office that such consent be
done away with through an executive order.

But the tribal affairs ministry repeatedly held consent provisions could be
done away with only by amending the Forest Rights Act. "The Forest Rights Act does not provide for any exemption to its
provisions (of requiring prior consent from tribal people) for any category of
forests, projects, persons, etc, in order to prevent any violation of
law," the tribal affairs ministry wrote.

Reacting to the environment ministry's draft notification to dilute tribal
consent provisions, the tribal affairs ministry had said this was "illegal,
encroaching upon the jurisdiction of the judiciary and the legislature"
and called it unacceptable.

But the tribal affairs ministry, referring to the Thoubal dam project, told the
National Green Tribunal: "As per the state government, the land in question
has been purchased by the government of Manipur from affected villagers through
their duly elected village authorities (equivalent to Gram Sabhas) and the
rights of any fresh dwellers residing in the project-affected area have already
been settled as per law. The spirit of the (Forest Rights) Act seems to have
been followed in the instant case."

It added it was relying solely on the submissions of the state government
regarding the consent of tribals. "That this being a question of fact, and
the answering respondent (the tribal affairs ministry) being a ministry of the
central government, does not have any statutory power or mechanism for
verification of such submissions made by a state government, and is therefore
bound to accept that such submission is made correctly and with due
responsibility."

In contrast, in the Vedanta mining case, the Centre had set up a committee to
review tribal rights and verify claims of consent by the Odisha government.
Based on the Centre's statements, the Supreme Court had ordered more than a
dozen tribal councils in the affected area to hold meetings and pass
resolutions in favour or against the project. These meetings were supervised by
the tribal affairs ministry.

In Thoubal, project developers built the dam from 1989 without a clearance. The
project received the first of a two-level statutory forest clearance in 2010.
When the petitioners went to court against the project, the environment
ministry issued the final forest clearance in 2013.

The petitioners pleaded that the final clearance had been issued without the
consent of tribal people. The environment ministry left it to the tribal
affairs ministry to decide. The tribal affairs ministry first said consent was
essential and then said an exception could be made for the particular project. In July 2014, the tribal affairs ministry disowned responsibility of verifying
whether consent had been sought.

Thursday, July 30, 2015

Memon’s execution has shown how the inheritors of the Dharmashastra –
which lays emphasis on prayaschitta or atonement as a means to
become “divine” – need only the minimal incitement provided by media hype to
become bloodthirsty

The year – about 2nd Century CE; the place –
the flourishing port city of Puhar, also known as Kaveri Poompattinam; the
story – the heart wrenching epic of Kovalan and Kannagi and of capital
punishment gone wrong. Children of prosperous merchants, Kovalan’s debauchery
leads the couple to penury. Hoping for new beginnings, the couple move to the
bounteous land of Madurai – where Kovalan, whilst trying to sell Kannagi’s gold
anklet filled with rubies, is beheaded without a trial as he is mistaken for
the thief who stole the Queen’s anklet. The epic highlights the righteousness
of the King and his consort, who give up their lives when they realise the
injustice meted out to Kovalan and the insatiable wrath of Kannagi, who burns
the entire city of Madurai to ashes.

This story from the Silapathikaram is not
just about the irreversible and cruel nature of the death penalty but also
a condemnation of the insatiable blood cry of victims seeking retribution and,
most significantly, the possibility of error in the delivery of justice,
even in the best of systems.

Punishment theories can broadly be categorised as
deterrent, retributive and reformative. The retributive theory of punishment is
the most basic and primitive, with reformative being intrinsic to an evolved
society and deterrence falling somewhere in between.

Deterrence as a basis for capital punishment should be
abhorred, as it is the very basis for extremism i.e., killing to set an
example. From the public hangings of yesteryears to the recent executions of
high-profile offenders, the death penalty may at best bring out voyeurism or
curiosity or worse in a person and not a Eureka moment of self-realisation in
which a person contemplating murder decides to step back in order to avoid
being hanged. Statistics further support the irrelevance of deterrence as
a basis for death penalty. The United States, with its death penalty, has more
homicides than other western countries, which abolished it. In Canada, as in
some US state, homicides have decreased after abolition of the death
penalty. India, which has held on stoically, has implemented the death
penalty only once in 2012 and 2013.

Retribution knows no boundaries and cannot be satiated.
Individuals and societies display progress through increased levels of
acceptance, tolerance, restraint and temperance. The recent display of anger
over Salman Khan’s twitter feed clearly does not show either temperance or
tolerance. The calls we heard for the expeditious hanging of Yakub Memon in the
light of divisions in the Supreme Court were a further display of
intolerance. On Thursday morning, those voices had their way as Memon was put
to death minutes after the dismissal of his final appeal.

The Attorney-General’s call for his speedy execution to
avoid opening the floodgates for other petitions is clearly misconceived. The
fact that the two Supreme Court judges who heard his writ petition against
his death warrant were divided clearly indicates doubt, the benefit of
which must always accrue to the accused.

The margin for error in
retribution is another reason to oppose capital punishment. Justice
William J Brennan famously observed that the “death penalty is imposed
not only in a freakish and discriminatory manner…” but also upon some
innocents. There are enough examples from around the world of innocents either
having suffered incarceration or even of having been executed and pardoned
after about 86 years, as in
the case of Colin Ross. It is now time for the world – and definitely India
– to move from merely breaking the nib of the pen that signs the death
penalty to breaking away from this practice itself and moving towards
reformation.

Memon’s execution has shown how the inheritors of the Dharmashastra
– which lays emphasis on prayaschitta or atonement as
a means to become “divine” – need only the minimal incitement provided by media
hype to become bloodthirsty. No doubt the cry for the death penalty
usually comes after a heinous or unspeakable crime is committed but
this cannot be a justification for an act of mindless killing
albeit sanctioned by law. Legality does not wipe away the indelible mark of
blood from the executioner’s hands. Socio-economic norms do not justify it.

Religion does not condone it – while Hinduism preaches prayaschitta and
Christianity turning the other cheek, Islam, which speaks of Qisa,
or retribution, also permits Tauba or repentance and pardon. Why India still
hangs on to the hangman’s noose therefore defies logic.

Insufficient infrastructure to ensure expeditious
investigations, delays in the system of justice delivery, subversion of truth
or justice in some instances, cause angst and frustration in society and lead
to justice being denied. Hanging the guilty cannot be the answer to these
deficits. This is not to say that every convict is a Kovalan or that no one
should be punished – just punishment is a prerequisite for effective
enforcement of the law. Justice, however, does not demand a life. As a
civilised society we must reaffirm our faith in reformative principles and
moral certitude. If we don’t, India may simply be sucked into the inexorable
sands of regression.

Wednesday, July 29, 2015

NB: For those of us who have observed Indian justice at work for several decades, it is clear that partisanship and bias is entrenched in the administration and the courts. All we need do is to compare the workings of the system in the case of 1984, 1992 (Babri Masjid demolition case); December 1992-January 1993 (Bombay riots for which the Srikrishna Commission was set up, and which named Bal Thackeray for instigating violence); 2002, (Gujarat, for which convictions were secured in the teeth of official complacency, and for which activists are being punished); 2008 (Kandhamal) etc., on the one hand; with the manner in which it has pursued the bomb blasts of 1993.

It is not merely this or that party that is at fault, it is the very ideology of communal revengethat has seeped into our state institutions. I wrote about this in an article commemorating the thirtieth anniversary of 1984: The Broken Middle. Moreover, there is a blatant attempt at intimidating those judicial officials (and we are thankful that such persons exist) who attempt to discharge their duties - witness the threats issued to Jyotsna Yagnik; and the warnings issued to Rohini Salian, Public Prosecutor in the Malegaon blasts case. If the thinking public remains silent in the face of this shameless bias, it will have itself to blame if the Indian Constitution is rendered a nullity by hooligans and fanatics. "When it becomes ‘political’, justice breeds hatred and despair among those it singles out for attack. Those whom it favours, on the other hand, develop a profound contempt for the very value of justice, they know that it can be purchased by the powerful."DS

Had Narasimha Rao had the guts, he would have
acknowledged publicly in July 1994 that the only educated member of the
infamous Memon family of Mahim had decided to return and help the
government with evidence of Pakistan’s hand in the March 12, 1993, bomb blasts
in Mumbai. The prime minister would not have cared about the howls of
indignation that would have emanated from the Bharatiya Janata Party-led
Opposition and from the families of the 257 people who died in the
blasts. Yakub Memon and his family would have been arrested, but
their bail petitions would not have been contested by the Central Bureau
of Investigation – an understanding reportedly given to Yakub Memon’s first
lawyer Shyam Keswani.

Had President Pranab Mukherjee had the guts, he would have
accepted Yakub Memon’s second mercy petition – the only one filed by
him (the first had been filed by his brother). The president had enough grounds
to do so, both legal and ethical, spelled out in the letter written to him last
week by a galaxy of retired judges, including some from the Supreme Court,
eminent lawyers, artists and academics.

Had the Supreme Court taken the advice of one of its own former judges, Justice
HS Bedi, it could have sent the death warrant back for a fresh look or
looked at the new evidence itself, given the revelations being made over the
last week. After all, it wasn’t some rookie activist lawyer giving the advice
– it was a judge who had himself handed out a death sentence.

A 'travesty of justice': But all of this could have happened only if
those with the power to show mercy,
considered Yakub Memon worthy of it. Imagine a man coming back
full of hope and faith in his country, a man who risked his life to gather
proof against his own brother and the powerful Inter Services Intelligence, a
man who convinced his family to come back too. Now imagine all of them thrown
behind bars, rapidly disintegrating. Yet, that man never lost faith. "The
investigating agencies have complete knowledge about me,’’ he wrote to the
Chief Justice in 1994. "I am a good citizen of this country. I
have tried to help the government in whatever manner I could. In fact, when
this case will come to its logical end and the truth will unravel, everybody
will come to know about my humble effort and sacrifice. If my story is known,
I’m convinced the court will set me free."

Yakub Memon’s daughter, whom he wanted to be brought up as Indian, and with
whom he could never spend even a year, says he never stopped telling her that
he would come home. Political activist Arun Ferreira, who was in Nagpur
Jail, told Scroll.in that Yakub Memon would never join
any protest because he didn’t want anything to spoil his spotless record and
come in the way of his freedom. Former Supreme Court judge Markandeya Katju has called Memon’s
conviction a "travesty of justice’’. If his conviction can’t be undone
– Justice Bedi felt it could – doesn’t this man at least deserve
mercy? Or is the baying for his blood too much to risk ignoring? By ruling
parties, maybe. But by the courts?

The only saving grace of this sorry shameful tale of appeasing mob sentiment is
that so many of our best minds have stood up against it. And hardly any of them
is Muslim. That counts, because Yakub Memon’s fate is irretrievably tied up
with him being a member of the Memon family.

If the March 12, 1993, blasts were motivated by religious revenge, there’s also
a long list of savage crimes committed by persons motivated by Hindutva. What
of the men who gang-raped Bilkis Bano, killed 14 of her family
members, flung her three-year-old daughter to the ground, smashing her
head in the Gujarat savagery of 2002? They were sentenced to life. Did the
"collective conscience’’ of the nation want these accused to hang?

We don’t know because there was no baying for blood in these cases. Not
that there should be. The death penalty spells revenge, not justice. But
the fact is such a clamour becomes loud enough to be noticed only when made by
the majority community, it would seem.

A travesty: There’s yet another travesty in Yakub Memon’s case
– the date of his execution, which seems to have acquired some sacrosanct value
looking at the way everything is being hurried through. July 30 is
his 53rd birthday. So we watch helplessly as a man whose culpability – or at least the extent of
it – even judges are not convinced of, is hung from the noose. The Shiv Sena
might celebrate as it has in the past. The BJP might do so too. Meanwhile,
the Mumbai police has as usual asked Muslims to keep the peace, as if
they are the only ones who pose a threat to it.

Sometimes one comment says it all. In a recent argument with
someone over the death sentence of Yakub Memon, the massacres in Bombay in
December 1992 and January 1993 came up. Nearly a thousand of my fellow Indians
were killed in those ghastly two months.

“Oh, those guys were punished," was this person’s airy handwaving
response. “Really?” I asked. “Can you name one person who has been punished for those
crimes?” To which this person said two things: First, “Yakub Memon!” Second, “The rest
are all named in the Srikrishna Commission report, why don’t you read it?”

So let’s get this straight. This person believes that those responsible for the
slaughter in 1992-'93 have been punished. That Yakub Memon is one of those
responsible. That the Srikrishna Commission report names all the murderers, and
names Memon as well. Add one more: since in reality pretty much nobody has been
punished for those killings, this person also believes that merely being named
by Srikrishna constitutes punishment. Wrong on all counts. And, therefore, a
more twisted world view would be hard to find. You’d think.

Justice BN Srikrishna was asked to inquire into those massacres in Bombay.
He submitted his report to the government of Maharashtra in 1998. I have read
it, actually. No, his report does not mention Yakub Memon. No, Memon had
nothing to do with the December 1992-January 1993 killings – unless you’re one
of those who falls for the specious and perverted argument that one atrocity
justifies another. Entirely separate from Srikrishna’s inquiry, Memon was
arrested, tried and sentenced for his role in the bomb blasts that happened two
months later, in March 1993.

But yes, Justice Srikrishna’s report does name people. Among them, Bal
Thackeray. Justice Srikrishna famously calls him “a veteran general” who
ordered men from his Shiv Sena to carry out “organised attacks against
Muslims”.

Crime and punishment: Here’s the
real issue: the great majority of those whom Srikrishna’s report names have
never faced justice for their deeds, let alone being punished. Far from it,
some even went on to greater successes in their political careers. Case in
point: Madhukar Sarpotdar, a mere Shiv Sena MLA when the army took him into
custody for carrying guns and swords in a riot-hit area at the height of the
violence (January 11, 1993). In 1995 and 1998, this same Sarpotdar was elected
to the Lok Sabha – my MP, as it happened. There’s plenty more to say about Sarpotdar, but I’ll save that for another day.

For now, perhaps you’re wondering why those who were named in Srikrishna’s
report were never punished. There’s a simple, almost tautological reason for
that: what he conducted was an inquiry, as spelled out in the Commissions of Inquiry Act, 1952 – and such an inquiry
is not a court of law. Period.

True, an inquiry under the Act has “the powers of a Civil Court” in various
respects. But the judgement in a 1977 case before the Supreme Court (State of Karnataka
vs Union of India and Another) spells out what this really means (actually
referring to an even earlier judgement, from the Nagpur High Court in 1954).
The judges observed that “the Act merely clothes the Commission with certain powers
of a civil court but does not confer on it the status of a court … the
Commission is only fictionally a civil court”. What’s more, “there is no
accuser, no accused and no specific charges for trial before the Commission,
nor is the Government, under the law, required to pronounce one way or the
other on the findings of the Commission”. There you have it. Not only is an inquiry not a court of law, not only has it
no powers to punish anyone – but our own law permits our governments to totally
ignore an inquiry’s findings.

Commissions and omissions: Have you ever wondered why, when various
particular episodes of terrorism in India happen – the massacre in Delhi in
1984, the massacre in Bombay in 1992-'93, the massacre in Gujarat in 2002, and
more – governments promptly set up Commissions to inquire into them? Wonder no
more. The reasoning goes like this: Governments know well, like you know well,
that our homegrown terrorists, with their intricate political connections, are
responsible for all this slaughter of Indians. Naturally, they can’t be
touched. Yet there remains a degree of public outrage over the slaughter, at
least at the time it happens. Therefore, quickly deflate that outrage by
announcing an Inquiry Commission. Let it drag on for several years. By then,
the outrage has dissipated, memories of the slaughter have grown fuzzy, and
anyway the inquiry can be ignored.

And what’s more, there will even be some yahoos who will run around telling
people that an inquiry equals punishment. That’s the very Indian story of every
inquiry like Srikrishna’s. Don’t believe me? Consider only that there have been nine
official inquiries – I’m not making this up – into the 1984 massacre
of 3,000 Indians in Delhi alone: Marwah, Misra, Jain-Bannerjee, Kapur-Mittal,
Ahuja, Potti-Rosha, Jain-Aggarwal, Naroola, Nanavati. Nine inquiries, all
completely ignored. Not one has resulted in punishment for anyone who killed
any of those 3,000 Indians in 1984.

In exactly the same way, Srikrishna’s report has been completely ignored.
Seventeen years since it was submitted, and it hasn’t resulted in punishment
for anyone who killed any of those nearly 1,000 Indians in 1992-'93.

Compare and contrast: With all that as context, let’s juxtapose two
situations. After the terrorism of December 1992 and January 1993 – the carnage
that killed nearly 1,000 Indians – we had an inquiry and nobody has been
punished for those crimes. After the terrorism of March 12, 1993 – the bomb
blasts that killed nearly 260 Indians – we had no inquiry. Instead, there was a
long trial and many convictions, including that of Yakub Memon. Perhaps we might all look in the mirror and ask: Why this difference?
Perhaps we might then ask: What does this do for justice and terrorism in
India?

India pursued justice with great vigour in the 1993
Mumbai bomb blasts case but showed no interest in convicting those behind the
riots that preceded the bombings.

Last week, the Supreme Court rejected a curative petition
filed by Yakub Memon, a convict in the 1993 Bombay bomb blasts, to reconsider
his death penalty. His impending execution, scheduled for July 30, has raised a series of questions about India’s justice
system.

Memon came back to India from Pakistan to surrender and brought with him proof
of Pakistan’s involvement in the bombings. This fact was pointed out by none other than B Raman, the person who
coordinated the operation for Memon’s return from Karachi. At that time, Raman
headed the Pakistan desk at the Research and Analysis Wing, India’s primary
foreign intelligence agency.

“The cooperation of Yakub with the investigating agencies after he was picked
up informally in Kathmandu and his role in persuading some other members of the
family to come out of Pakistan and surrender constitute, in my view, a strong
mitigating circumstance to be taken into consideration while considering
whether the death penalty should be implemented,” Raman wrote.

Memon’s death sentence is just one questionable decision. The partisan manner
in which India’s justice system works can be seen from the following chart: (See
article)

As many as 100 people have been convicted for the 1993
Bombay serial blasts which took 257 lives. However, in the 1992-’93 Mumbai
riots, an act of mass violence that killed 900 people, just three convictions have been achieved. Even these three
were for the relatively minor charge of hate speech and only carried jail time
of a year. There were no convictions for the numerous incidents of murder, rape
or arson. What explains this massive gulf?

Two approaches: The answer lies in the Indian state’s approach to the
two crimes. The Maharashtra government mostly didn’t bother about punishing the
people who led the anti-Muslim massacres of December 1992 and January 1993. All
it did was appoint a commission – the Indian politician’s go-to answer when he
wants to do nothing.

When this commission, headed by Justice BN Srikrishna, did submit its report,
it was damning. The report described Shiv Sena chief Bal Thakeray’s role as
that of a “veteran General” who “commanded his loyal Shiv Sainiks to retaliate
by organised attacks against Muslims”. The process of damning, sadly, never moved on to any damnation: no action was
taken on the Srikrishna Report. Thackeray was, in fact, given a state
funeral – Maharashtra’s Congress government maybe taking the “General” bit
literally

Not only Thackeray, the police barely pursued any riot cases. In fact, as many
as 60% of cases were summarily closed with the remark “true but
undetected”. Later on, the Srikrishna Commission found that even blindingly obvious cases, such as when
victims had named assailants who were their neighbours, were ignored and
dismissed. In contrast, the blasts were prosecuted with rare vigour. A special
investigative team was appointed and the stringent Terrorist and Disruptive
Activities (Prevention) Act was applied liberally. The results are borne out by
the number of convictions.

NB: Now that our criminal justice system has decided to execute Yakub Memon, maybe the hon'ble judges will apply their minds to the violence instigated by the 'Parivar' and allow the "law to take its course" with regard to crimes committed in December 1992. Is the 'Parivar' above the law? Here are some indications that this is indeed the case:

"When it becomes ‘political’, justice breeds hatred and despair among those it singles out for attack. Those whom it favours, on the other hand, develop a profound contempt for the very value of justice, they know that it can be purchased by the powerful." If the Government of India wishes to announce before the entire world that it punishes violence and terror selectively, that it allows communal and caste bias to influence the delivery of justice to Indian citizens, we should give up all claims to be a law-governed polity. DS

In the furious debate on whether or not to hang Yakub Memon,
it is pertinent to insert the question: What is the status of the trial of
those accused of demolishing the Babri Masjid? The fate of Yakub and the
destruction of the Babri Masjid are indeed linked through more than two decades
of hatred and anger and injustice.

As is well known, the demolition of the Babri Masjid on December 6, 1992 in
Ayodhya triggered a relentless wave of bloodletting countrywide. Mumbai was
particularly affected – it witnessed two rounds of grisly rioting, in December
1992 and January 1993, which ultimately culminated in the serial bomb blasts in
the city two months later. The courts declared Yakub guilty of playing a role
in engineering these blasts, popularly perceived as retribution against the
riots following the demolition in Ayodhya.

This is the reason why analysts have now been prompted to compare the Indian
state’s steely resolve to pursue the perpetrators of terror attacks to its
lackadaisical attitude in bringing to book those who stoke communal
conflagrations. Thus, for instance, it has taken 22 long years to bring a closure
to the 1993 Mumbai bombing. In comparison, the wait for justice in the
demolition of the Babri Masjid is likely to be inordinately long.

Indeed, the Babri Masjid demolition cases continue to languish at the trial
stage, dogged by procedural problems, not the least because of what seems to be
the changing and confusing stance of the CBI. But even the CBI’s changing
stance pales in comparison to the role Home Minister Rajnath Singh seems to
have played in altering the course of the Babri Masjid demolition cases.

As chief minister of Uttar Pradesh, between October 28, 2000, and March 8,
2002, his government did not remove a defect in a state government
notification, decisively impacting the demolition cases. It is because of this
defective notification that BJP leader LK Advani still doesn’t face legal
proceedings for criminal conspiracy under Section 120 (B) of the Indian Penal
Code. As of now, Advani is being merely tried for delivering provocative
speeches, the punishment for which is decidedly less severe in comparison to
what the conspiracy charge would invite.

The role of Singh is alluded to in a plea that Haji Mahboob Ahmad, a resident
of Ayodhya whose house was burnt following the demolition of the Babri Masjid,
filed in March this year in the Supreme Court, against the Allahabad High
judgement in a case arising from the defective notification. Argued by former
Union Minister Kapil Sibal and senior Supreme Court advocate MR Shamshad, the
plea states that a senior minister (Singh) of the Modi government has been
charged for “not curing the defect in the notification” which
has prolonged the demolition cases, besides changing their tack.

How did this happen?: Following the demolition, there were two principal First Information Reports
filed – Crime No. 197/92 and Crime No. 198/92 – in addition to 47 others. In
Crime No. 197, the accused were “unknown persons”, essentially the thousands of
those who razed the Babri Mosque to the ground in Ayodhya on December 6,
1992. In Crime No. 198, there were eight accused, including Advani
and Uma Bharati, now a minister in the Modi government. The charge against them
pertained to making provocative speeches leading to enmity between communities.

Two special courts were established to try all the accused – the one in Lucknow
was to handle Crime No. 197 and 46 other FIRs. A special court in Lalitpur was
to try the eight accused in Crime No. 198. Subsequently, the special
court of Lalitpur was transferred to Rae Bareli, where it still exists. However, on October 5, 1993, the CBI filed a combined chargesheet in the
Lucknow special court against the accused in all 49 cases. It named 49 persons
including the eight accused in Crime No. 198. The CBI argued that the combined
chargesheet had to be filed as all the cases were part of the same
“transaction” which led to the demolition of the Babri Masjid.

Consequently, on Oct 8, 1993, the Uttar Pradesh government issued a
notification transferring Crime No. 198 from Rae Bareli to the special court in
Lucknow. It was this notification which was to put the skids under the
demolition cases several years later.

The notification: It began when the special judge in Lucknow passed an order on September 9,
1997, saying that there was a prima facie case against all the 49 accused and
that charges of criminal conspiracy and other offences should be framed against
them under Section 120 (B) of the IPC. The judge, too, said that Crime No. 197
and Crime No. 198 were part of the same transaction that led to the demolition
of the Babri Masjid, thereby warranting a “joint trial” and were indeed
“triable” by him.

This order was challenged through four revision petitions filed by 33 of the 49
accused in the Allahabad High Court. On Feb 12, 2001, the High Court held that
the notification of Oct 8, 1993 transferring Crime No 198 from Rae Bareli to
Lucknow was defective. This was because the government had issued the
notification without the concurrence of the High Court, which is mandatory. But the High Court kept the door ajar for trying the eight accused for criminal
conspiracy in Lucknow, as it said that the defect in the notification was “curable.”
This meant the government had to merely re-issue the notification after seeking
the permission of the High Court, considered a mere formality.

Rajnath Singh was the chief minister of UP then. His government didn’t act upon
the High Court’s suggestion. Three months later, the Singh government’s
inaction became the ground for the accused to apply to the special court for
dropping the proceedings against them. Not only did the special court drop the
proceedings against the eight, including Advani, but also another 13. In other words, let alone being tried for criminal conspiracy, Advani was no
longer on trial in Lucknow for even making provocative speeches. The National
Democratic Alliance government was in power at the Centre then and Advani was
its Home Minister.

Defects uncured: The special court’s order prompted the redoubtable Teesta Setalvad, her father
Atul Setalvad, her husband Javed Anand and former editor Kuldip Nayar, among
others, to petition the High Court through their Advocate Zafaryab Jilani,
convener of the Babri Masjid Action Committee. Their plea was to have the
proceedings initiated against Advani and others.

Getting no effective relief from the High Court, the Supreme Court was then
moved in what is now called the Aslam Bhure case. In its reply to the Supreme
Court, the UP government, of which Mayawati was then the chief minister, said
the Rae Bareli special court still existed and Advani and seven others be tried
there. Thus, Crime No. 198 was tossed back to Rae Bareli.

However, there were still surprises in store. On Sept 19, 2003, the judge of
the special court in Rae Bareli discharged LK Advani from the case, but framed
charges against the remaining seven accused. All these seven petitioned the
Lucknow Bench of the Allahabad High Court, as did Haji Mahboob Ahmad against
the discharge of Advani. The petitions of the seven accused were dismissed, but
that of Ahmad was accepted.

In its order, the High Court observed that though there was no direct evidence
testifying to political interference, “but considering the facts and
circumstances of the case, the role of CBI cannot be said to have been
unquestionable.” The Court, in fact, asked the CBI to introspect on its role in
the cases and think whether it had lived up to its reputation as a premier
investigating agency in which people have reposed faith.

The CBI consequently filed in 2003 what is called supplementary chargesheet in
the special court in Rae Bareli. The NDA was still in power – the supplementary
chargesheet did not mention the charge of criminal conspiracy. So when the
special court framed charges against Advani and seven others, these, obviously,
did not include criminal conspiracy under Section 120 (B) of the IPC. Advani
was charged under Section 153 (A), 153 (B), and 505, all of which lack the
sharp edge of Section 120 (B). The three sections pertain to promoting enmity
among classes, making assertions inimical to national integration, and inciting
people to commit offence.

But the lingering hope of the charge of criminal conspiracy being restored
against Advani and 20 others anytime soon was dashed on May 20, 2010. On that
day, the High Court upheld the special court’s 2001 decision to drop
proceedings against them. In other words, these 21 gained from the Rajnath Singh
government’s failure to “cure” the defective notification and reissue it.

From BJP to Congress: But even the Congress-led United Progressive Alliance government didn’t seem
particularly enthused about pursuing the demolition cases. Accused of cynically
misusing the CBI to torment politicians such as Mulayam Singh Yadav and
Mayawati, in the hope they would be scared into voting for the UPA bills in
Parliament, it was thought an appeal against the 2010 High Court judgement
would be filed quickly.

However, the CBI took nine months to file its appeal in the Supreme Court, as
against the time limit of three months. The failure to file an appeal in three
months has provided Advani and others a legal loophole to exploit. Contrast its
laidback approach to the fervour it is now displaying against Teesta Setalvad
and her husband, Javed Anand, for their alleged violation of the FCRA.

No doubt, Haji Mahboob Ahmad was permitted by the Supreme Court in March this
year to file a petition for becoming a party to the appeal against the May 10,
2010 High Court judgement, but the maintainability of his and the CBI’s appeal
will have to be settled before it can be taken up and argued. So add a few
months, if not years, before it can even be determined whether Advani and the others
can be tried for criminal conspiracy.

Meanwhile, the trials in the demolition cases continue to progress tardily. The
Lucknow special court has completed examining the 152nd witness of the
prosecution; the court in Rae Bareli has gone through 42 witnesses thus far.

It is quite understandable why Advani and other leaders from the Sangh don’t
wish to be tried for criminal conspiracy. If the conspiracy charge were to be
ever restored and upheld, it would give a lie to the Sangh’s claim that the
demolition of the Babri Masjid was a consequence of spontaneous outburst of the
thousands of its activists who had assembled in Ayodhya on December 6.
Thus, without it, the Sangh and its senior leaders would be legally absolved of
having conspired to demolish the Babri Masjid.

Contrast the course of the Babri Masjid demolition cases with the Indian
state’s treatment of Yakub Memon. Some analysts, including those writing
for scroll.in, have wondered what kind of
message the hanging of Yakub would send to Muslims.

One reason for a garbled message being sent to Muslims is the twists
deliberately imparted to the Babri Masjid demolition cases, courtesy Rajnath
Singh's BJP government in UP and the CBI under various dispensations. If Yakub’s
claim that he was oblivious of the plan to bomb Mumbai sounds incredible, given
that his brother Tiger played a central role in it and bombs were assembled at
their residence, then it is as hard to believe that the Sangh and its leaders
didn’t conspire to demolish the Babri Masjid.

The novelist Milan Kundera wrote, “The struggle for power is the struggle of
memory against forgetting.” To make people forget, the template of popular
memory requires reworking. The circumstances are propitious – the BJP is in
power again and Rajnath Singh is the Home Minister. LK Advani has metamorphosed
into a voice of moderation, even an elderly statesman. As for those whose relatives and friends died in the countrywide riots
following the demolition of the Babri Masjid, the Supreme Court is their last
port of call for justice, for even keeping intact their memory of December 6,
1992, for not having it declared as a figment of their imagination.

It is the silences that attend media coverage of Yakub
Memon’s impending execution and not the Shiv Sena’s aggressive calls for his
hanging that hold a mirror to Indian democracy most clearly. Leading
national dailies carry photos of mangled bomb blast sites and interview those
affected, as if to justify the imposition of the death penalty; none ask why
other victims must continue to suffer silently the indignity of watching their
attackers go scot-free. The 1993 blasts were a heinous act of terror that came at
the end of an equally heinous set of communal killings that tore Bombay apart
in December 1992 and January 2003 but you would be hard pressed to find any
mention of this context in any reporting of Yakub Memon. Memon is indeed guilty
as charged and nothing can justify his involvement in the bombings.

For the
benefit of Indians under the age of 30-35, however, the media ought to have
provided the background to the 1993 bombings: the destruction of the Babri
Masjid on December 6, 1992, the celebration rallies held by the BJP and Shiv
Sena in Bombay, the complicity of the Bombay police and the Congress-led
Sudhakarrao Naik government in the targeted killing of Muslims, the subsequent
appointment of the Srikrishna Commission, and its indictment of the Hindutva
forces and police involved in the 1992-3 Bombay riots. This background is
essential not in order to lessen the guilt of Memon but to remind us of the
other crimes that are crying out for punishment.

That the government itself felt there was a connection
between the mob terror and bomb terror of that period is shown by the extended
terms of reference given to the
Srikrishna Commission: to explore whether the 12 March 1993 blasts had
anything to do with the 1992-93 riots. The Srikrishna Commission concluded: “One common link between the riots of December 1992 and
January 1993 and bomb blasts of 12 March 1993 appear to be that the former
appear to have been a causative factor for the latter. There does appear to be
a cause and effect relationship between the two riots and the serial bomb
blasts. …

“Tiger Memon, the key figure in the serial bomb blasts case
and his family had suffered extensively during the riots and therefore can be
said to have had deep rooted motive for revenge. It would appear that one of
his trusted accomplices, Javed Dawood Tailor alias Javed Chikna, had also
suffered a bullet injury during the riots and therefore he also had a motive
for revenge. Apart from these two specific cases, there was a large
amorphous body of angry frustrated and desperate Muslims keen to seek revenge
for the perceived injustice done to and atrocities perpetrated on them or to
other members of their community and it is this sense of revenge which spawned
the conspiracy of the serial blasts. This body of angry frustrated and
desperate Muslims provided the material upon which the anti-national and
criminal elements succeeded in building up their conspiracy for the serial bomb
blasts.”(emphasis added)

The Bombay bombings are a cruel reminder of what can happen
when state institutions fail to protect citizens from violence (or worse
collude in the violence) and then deny them justice as well. Till justice is
even-handed, coming down as heavily on the perpetrators of crimes against minorities,
adivasis and dalits, as it does on individuals from these communities when they
commit crimes, it will always be justice denied.

When Teesta Setalvad is harassed and persecuted for taking
up the cases of the victims of the Gujarat pogrom of 2002 while those who
committed the crimes are out on bail, what message are we sending? When the
National Investigation Agency fails to seriously prosecute cases of terrorism
involving Hindutva extremists, when files
involving Hindutva terrorists conveniently disappear from a Jammu
police station, will the cause of ‘justice’ really be served by
hanging Yakub Memon but not even ensuring a day’s prison for others?

If the Indian state cannot be trusted to deliver justice, B.
Raman’s revelations – and the CBI’s
admission that Yakub was ‘induced’ to return to India – tell us
it cannot also be trusted to keep its word. The interlocutors who secured
IAS officer Alex Paul Menon’s release from the Maoists realised this when no
ordinary adivasi was released in exchange despite the government’s promises; now
any insurgent who wants to surrender or negotiate will think a hundred times
before trusting the Indian government. Yakub Memon’s hanging will not help
India find closure. Terror cannot be fought by the state selectively honouring
its commitments, least of all its obligation to provide justice regardless of
who a victim is and who the perpetrators are.

"The masterminds of the 26/11 attacks are treated like heroes in Pakistan. We are not there yet, but if hidden hands nudge the judicial system to free murderers of the saffron variety, we will be soon"

NB: I am adding a citation from an important book on Nazism written in the 1930's, Behemoth, The Structure and Practice of National Socialism; New York, republished 1963, p 27. The author was Franz Neumann. A pdf file may be read here: <http://www.unz.org/Pub/NeumannFranz-1942-00027> DS.

(The counter revolution) ‘…tried many forms and devices, but soon learned that it could come to power only with the help of the state machine and never against it… the Kapp Putsch of 1920 and the Hitler Pustch of 1923 had proved this.. In the centre of the counter revolution stood the judiciary. Unlike administrative acts, which rest on considerations of convenience and expediency, judicial decisions rest on law, that is on right and wrong, and they always enjoy the limelight of publicity. Law is perhaps the most pernicious of all weapons in political struggles, precisely because of the halo that surrounds the concepts of right and justice… ‘Right’, Hocking has said, ‘is psychologically a claim whose infringement is met with a resentment deeper than the injury would satisfy, a resentment that may amount to passion for which men will risk life and property as they would never do for an expediency’. When it becomes ‘political’, justice breeds hatred and despair among those it singles out for attack. Those whom it favours, on the other hand, develop a profound contempt for the very value of justice, they know that it can be purchased by the powerful. As a device for strengthening one political group at the expense of others, for eliminating enemies and assisting political allies, law then threatens the fundamental convictions upon which the tradition of our civilization rests…